Common law, Civil law, international and supranational legal systems:
understanding different types of judgment
The courts in common law and civil law jurisdictions produce different types of
judgments.
In a common law system, such as that in England and Wales, the decisions of
certain courts higher up in the hierarchy of courts have force of law in the same
way as Acts of Parliament created through the democratic process. Both
legislation and case law have equal effect as law of the land. In England the
doctrine of parliamentary sovereignty applies so that Parliament can always
legislate to effectively overrule a judgment of the court that it does not like.
Furthermore UK courts do not have a power to declare any Act of Parliament
unconstitutional and therefore void. They only have a limited power to make a
declaration of incompatibility where they deem an Act to be incompatible with the
provisions of the Human Rights Act 1998. This contrasts with the American
common law system, where, for example, the US Supreme Court can declare an
Act unconstitutional and therefore void.
The operation of a system of precedent means that courts are bound to follow a
previous judgment of a court higher or (in certain circumstances) at the same
level in the hierarchy of courts where the facts are the same or sufficiently similar
to those in the previous case.
So in the UK a High Court judge must follow the decisions of the Court of
Appeal on the same issue. Both the High Court and the Court of Appeal must
follow the decisions of the Supreme Court on the same issue. In countries, such
as France, that have a civil law system the judgments of the courts do not have
legal effect in the same way as judgments of the common law system courts.
The judgments of courts in civil law systems apply as between the parties to the
dispute but they do not bind later courts and they do not have the same legal
effect as law made by parliament.
The operation of the common law system requires that judgments are more
detailed than those in civil law systems so they will inevitably be longer and
provide more information on the case. Common law systems tend to use the
adversarial means of trial whereby the parties or their legal representatives
present their arguments in court and the judge resolves the case on the basis
of the arguments put before her.
In a civil law jurisdiction the trial is usually based on the inquisitorial approach.
This means that the judge takes a more active role in the case by asking
questions of the parties in advance; the judge, rather than the parties, can
decide the issues of law that need to be resolved; even where the parties
present argument this can be carried out by written submissions and there is not
necessarily an oral hearing, the judge(s) might decide the issue on the paper
submissions. The judge does not have to take account of previous decisions.
The European Court of Human Rights
In Europe and elsewhere courts also exists within international and supranational
legal systems. The European Court of Human Rights, for example, is governed by
international law and the application of its judicial decisions within national legal
systems depends on the manner in which those legal systems treat such judgments.
In the UK, for example, under section 2(1) of the Human Rights Act:
“A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any- (a) judgment, decision, declaration
or advisory opinion of the European Court of Human Rights”
The European Court of Human Rights does not itself follow a doctrine of
precedent (it is not bound by its previous decisions). The court applies a
“margin of appreciation” when deciding cases. This enables it to decide that a
member state is better placed to decide, in the light of local social and historical
conditions, the extent of protection to be accorded to particular rights. Because
conditions differ from member state to state it will therefore refrain from
identifying breaches of fundamental rights in some cases but not in others. This
means it can sometimes appear to give contradictory or inconsistent judgments.
In addition the European Court of Human Rights can determine that social
conditions have changed and something that was not acceptable a number of
years ago is now acceptable and it will therefore decide a case differently.
The operation of the margin of appreciation enables the ECtHR to hold together
the diversity of national opinion within the European Convention of Human Rights
member states. This underlying policy or aim does affect the judgments it hands
down: for interesting academic discussion of the role of the European Court of
Human Rights see: Universality or Diversity of Human Rights?: Strasbourg in the Age
of Subsidiarity by Robert Spano, Human Rights Law Review 2014 14(3), p 487:
http://hrlr.oxfordjournals.org/content/14/3/487.full.pdf+html date accessed 26 November
2014 and Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme? By
Brenda Hale, Human Rights Law Review 2012 12(1), p 65:
http://hrlr.oxfordjournals.org/content/12/1/65.full.pdf+html?sid=c2de82fc-31f1-4cdb-ad46-
5b1c059f76a3
Judgments of the European Court of Human Rights are fuller than those
handed down in civil law systems – they are perhaps more of a hybrid type of
judgment setting out the facts, the law, the argument of the parties and the
application of the law to the facts. They will often include dissenting or
concurring judgments from a limited number of the judges.
The Court of Justice of the European Union
The Court of Justice of the European Union is the highest court of the European
Union and sits within a supranational legal system. This means its judgments
must be followed by the national courts within that legal system. It was initially
set up as a civil law court and its judgments tended to be short and to the point.
Over time the influence of the common law judges in Europe can be seen in the
development of the CJEU case law as it developed a more discursive type of
judgment. Many cases are decided on paper submissions, there is no oral
hearing, and the judgment of the court is unanimous, there are no dissenting
opinions. An advocate general will often provide an opinion to the court before it
gives its judgment. The Advocate General’s opinion is advisory, it does not form
part of the judicial decision.
As the EU has grown and the role of the CJEU has expanded and the judgments
are now longer and more akin to the types of judgments that can be found in
common law legal systems. The court now follows a doctrine of consistency. This
means it reserves the right to depart from a previous decision but will follow
previous cases where possible.
The underlying policy which the CJEU has in mind when deciding cases is EU
integration. The CJEU was instrumental in holding the EU together in its early
years and it continues to have this overall goal in mind.
Identifying the legal system for the purpose of case not and case comment
writing
It is a good idea to make a note of which type of legal system a case comes from
when writing your case note or case comment. As you write bear in mind the
constraints upon the court when reaching its decision and the affect its
judgments have within its own legal structure, whether that is a national,
supranational or an international one, when writing a case note and a case
comment. This is particularly so when considering judgments of courts which are
affected by particular policy concerns such as the ECtHR and the CJEU.
The following sections will cover deconstruction and reconstruction of judicial
decisions. In light of the above explanation, however, it should be noted that
some of the information that is available in common law jurisdictions – such as
an explanation of the arguments of either side – will not necessarily be set out in
the judicial decisions given in other types of legal system and so unless there
are external sources that can be relied on this material will not form the basis of
the discursive argument in the case comment.
